Thompson and Comcare

[2004] AATA 756

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 756

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V04/559

GENERAL ADMINISTRATIVE  DIVISION		)
Re		MICHAEL THOMPSON

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date20 July 2004

PlaceMelbourne

Decision The time to lodge these proceedings, being an application to review a reviewable decision of Comcare be extended to 10 May 2004.

(Sgd)  J Handley

Senior Member

PRACTICE AND PROCEDURE – delay of three years in lodging application to review a reviewable decision – inactivity by Solicitors – applicant not aware decisions had been made – absence of prejudice – explanation for delay – fair and equitable to extend time

Comcare v A’Hearn (1999) 18 AAR 366

Comcare v Willems (1996) 70 FCR 244

Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344

Jess v Scott (1986) 70 ALR 185

Marrick v Comcare (1993) 40 FCR 244

Re Pulitano and Telstra Corporation Limited (AAT 8874, 27 July 1993)

Williams v FS Evans and Sons (1998) 52 SASR 237

Safety, Rehabilitation and Compensation Act 1988 (Cth) s65

Administrative Appeals Tribunal Act 1975 (Cth) s29(2) and s29(7)

REASONS FOR DECISION

Mr John Handley, Senior Member           

1.      The applicant applies to extend time to lodge these proceedings.  The application was opposed by the respondent.  The hearing of the application was heard on 9 July 2004.  Mr Fehring and Mr Ferwerda both of Counsel appeared on behalf of the applicant and respondent respectively.  A number of documents were received into evidence including Affidavit material from the applicant and his current solicitor.  Those documents will be referred to in these reasons.

2. The primary determination issued by the respondent was made on 16 August 1999. The decision by way of reconsideration was made by the respondent on 20 February 2001. The proceedings sought to be lodged by the applicant were received by the Registrar of this Tribunal on 10 May 2004. Section 65 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) modifies the provisions of s29(2) of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) by prescribing that the period of time between receipt of the decision under review and the lodgement of an application for review is confined to a period of 60 days. This application is made pursuant to s29(7) of the AAT Act whereby the applicant applies to extend the time to lodge these proceedings.

the evidence

3.      Mr Thompson adopted an Affidavit sworn by him on 7 July 2004.  The Affidavit was received into evidence.  A number of documents were annexed to it (refer later).

4.      The Affidavit records that he joined the Army Reserves on 28 June 1994 on his 17^th birthday.  On 2 July 1994 he commenced recruit training and on 4 July 1994 he injured his right ankle.  He completed an accident report on 6 July 1994.  At all relevant times Mr Thompson was then living in Townsville in Queensland.

5.      Eventually he was discharged from the Army Reserves and moved to Rochester and Tongala in Northern Victoria where he was employed performing agricultural labouring and in retail sales.  He had surgery over his right ankle in 1995, 1996, 1998 and in 2004.  He also had surgery over his left ankle in 1997.

6.      In 1998 Mr Thompson consulted with an advocate at a local RSL Branch who assisted him in making a claim for compensation.  A claim was formerly made upon the respondent on 15 March 1998.  Thereafter the applicant provided copies of reports from his treating doctors and invoices for treatment.  The respondent subsequently requested further information from the applicant including his authority to obtain reports from his doctors.

7.      On 5 January 1999 Mr Thompson consulted with the firm Mitchell McKenzie and Co. Solicitors of Echuca.  Thereafter there was extensive correspondence from that firm to the respondent culminating in a determination being issued on 16 August 1999.  The determination was attached to a letter bearing the same date which was addressed to the solicitors.  Mr Thompson continued to instruct Mitchell Mckenzie and Co. but it was not until June 2001 that he learnt, from his solicitors, that his “claim was closed”.  At that time Mr Thompson learnt that a request for reconsideration had been made and a reviewable decision had been issued on 20 January 2001.  The reviewable decision (refer later) purported to affirm the primary determination which confined liability to a limited period only.  Apparently dissatisfied with that firm of solicitors, Mr Thompson instructed his present solicitors Nevine Lenne and Gross in December 2001.  Thereafter that firm obtained the applicant’s file from his former solicitors and eventually these proceedings were lodged.

8.      Elizabeth Davidson, a solicitor in the employee of Nevin Lenne and Gross, filed an Affidavit sworn by her on 7 July 2004.  A number of documents were annexed to the Affidavit.

9. Ms Davidson (who did not give evidence) swore in her affidavit that Mr Thompson instructed the firm of Nevin Lenne and Gross to act on his behalf on 11 December 2001. Another solicitor with that firm first obtained instructions from Mr Thompson on 14 December 2001. She learnt from observation of the file that there was correspondence between the solicitor, Mitchell McKenzie and the respondent during the period January 1999 until June 2001. Whilst she took over the conduct of the applicant’s application on 28 April 2004, her observation of the file indicates that in January 2002 the applicant’s medical records were received with respect to his army service. Thereafter the applicant continued to instruct Nevin Lenne and Gross to pursue his claim for compensation and requests were made for reports from the applicant’s treating surgeons. In September 2002 letters were received from the Commonwealth Rehabilitation Service (“CRS”) with respect to rehabilitation assistance that had been provided to the applicant. Thereafter medical reports were received and in February 2003 a solicitor at Nevin Lenne and Gross consulted with the applicant. In May 2003 Ms Davidson dealt with a query concerning the applicant’s file in the absence of another solicitor who then had the conduct of the file but when that solicitor returned to work she took no further action. Her observations of the file subsequently indicated that there was further correspondence initiated by the other solicitor with the applicant and his doctors and with the former solicitors. In December 2003 a letter was forwarded to the applicant with respect to a claim that was intended to be made pursuant to s24 and s27 of the Act and in February 2004 instructions were received from the applicant to pursue such a claim. A letter was forwarded to the respondent in March 2004 making such a claim but it was returned with the advice that the Military Rehabilitation and Compensation Commission within the Department of Veterans’ Affairs was responsible for processing claims of that type.

10.     On 28 April 2004 Ms Davidson took over the conduct of the applicant’s file in the absence of the other solicitor.  On 30 April 2004 she wrote a letter to the respondent and on 6 May 2004 the application, which is the subject of these proceedings, was forwarded to the Registrar.

11.     In cross-examination the applicant said that he recalled the incident of 4 July 1994 where he injured his right ankle.  He said he had no memory of any “recurring injury” however he acknowledged the history taken by doctors at that time was probably provided by him in consultation.  The applicant said he could not recall having any treatment for either his left or right ankle prior to July 1994 nor could he recall any prior injury to either ankle.  He recalled that he did attend doctors on a number of occasions in July 1994 but denied that by the end of July 1994 he did not present with any complaint of ankle pain.  Mr Thompson said that he recalled having surgery on a number of occasions subsequent to 1994 but could not recall whether doctors who have subsequently treated him had provided reports.

12.     Mr Thompson confirmed that he did instruct Mitchell McKenzie to act on his behalf and had been advised to seek legal assistance by a volunteer advocate with a local RSL Branch.  He said that he was not aware of the decisions that were made on 16 August 1999 or 20 January 2001 and was not aware that there were time limits in lodging appeals.  Mr Thompson confirmed that he had been in contact with his solicitors within that period of time but could not recall whether he personally attended the office of Mitchell McKenzie.  He recalled that in June 2001 he did attend the office of Mitchell McKenzie and was then told by a solicitor that his file had been closed.  At that time he said that he had become “concerned” and learnt that decisions had been made by the respondent.  He requested that his file be forwarded to him and he eventually sought advice from another solicitor who referred him to Nevin Lenne and Gross.

13.     In re-examination Mr Thompson said that he first learnt of the existence of the decisions of 16 August 1999 and 20 January 2001 after he obtained his file from Mitchell McKenzie.  He acknowledged that both decisions were annexed to letters of the same date and that both letters were addressed to his former solicitors.  He said that those letters had not ever been forwarded to him and that he was not aware of the content of them.

submissions

14.     At the commencement of the hearing – and again in closing submissions Mr Fehring submitted that the reviewable decision of 20 January 2001 required characterisation.  He submitted that the decision was capable of interpretation as a refusal to reconsider the request for determination.  In the alternative it was submitted that the decision could be interpreted as an affirmation of the primary determination.

15.     With respect to the first submission Mr Fehring submitted that the consequence of a refusal to reconsider a determination – because the request was made beyond the statutory period – confines the enquiry to the delay in lodging proceedings to the period commencing on the date of receipt of the primary determination and the date of request for reconsideration.  In these circumstances the period of time is approximately 11 months.  On this basis Mr Fehring relied on the Full Federal Court decision of Comcare v Willems (1996) 70 FCR 244. In the alternative, if the reviewable decision was characterised as an affirmation of the primary determination, then the period of time in issue in this application would be the period commencing on the date of receipt of the reviewable decision and the date of lodgement of these proceedings, being approximately three years and four months.

16.     Mr Fehring submitted that at least prior to the time that the applicant received his file from his former solicitors he was unaware that any determination or reviewable decision had been made.  He was entitled in the circumstances to rely on the professional expertise of his lawyers who had either not communicated with him or in the event of communication had not advised him that a primary determination and a reviewable decision had been made.  It was noted that the lawyers had advised the applicant – after he consulted with them – that his file had been “closed” but this advice had not been previously been given to Mr Thompson.

17.     It was submitted that the applicant’s claim did have merit.  Mr Fehring pointed to the medical evidence and despite the cross-examination of the applicant by Mr Ferwerda, it was submitted that an application for an extension of time should not involve a full scale merit review of the relationship between employment and injury. 

18.     It was submitted that the decision of the Full Federal Court in Comcare v A’Hearn (1999) 18 AAR 366 (“A’Hearn”) modified the decision of Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344 (“Hunter Valley”) where an “acceptable” explanation for delay is no longer a precondition for an extension of time.  Mr Fehring relied on the decision of O’Loughlin J in Marrick v Comcare (1993) 40 FCR 244 (“Marrick”) where it was decided that consideration of delay extended to consideration also of “fairness and equity”.

19.     It was also submitted that there was no evidence on the part of the respondent that it had suffered any prejudice.  Indeed it was submitted that the history of the relationship between the applicant and respondent so far as may be gleaned from the documents indicates an intention on the part of the applicant to pursue his application.

20.     Mr Ferwerda submitted that the application to extend time should be refused.  It was submitted that the applicant had failed to discharge an onus upon him to establish a basis for the exercise of a discretion in his favour.  It was submitted that the delay in processing the application – irrespective of the manner in which the reviewable decision is to be characterised – was considerable.  It was conceded there was no onus upon the applicant to demonstrate an “acceptable” explanation for delay, nonetheless it is a relevant consideration in the exercise of the discretion.  It was noted that the applicant had subsequently consulted a firm of solicitors (who are well credentialed in personal injuries practice) and no explanation had been forthcoming by the firm for the delay caused by it in bringing the continuity of the proceedings to the attention of the respondent.

21.     It was noted that the applicant had failed to lodge any reports from his treating surgeons but rather sought to rely on the opinion of a medico-legal specialist who had examined the applicant in the week prior to the hearing of the extension of time application.  It was submitted that the claim was lacking in merit because of a significant pre-1994 history of injury and the notes of the Echuca Hospital tended to indicate that within four weeks of the initial presentation the applicant was not then making any complaint of pain or discomfort associated with the right ankle injury.

conclusion and reasons for decision

22.     I am satisfied that there is merit in the submission made by Mr Fehring that the reviewable decision may be characterised as a refusal to reconsider the primary determination.  It would necessarily follow that the reviewable decision cannot on the one hand refuse to reconsider the primary determination and within the body of the same decision purport to affirm the primary determination.

23.     The practical consequences of characterisation of the reviewable decision result in two different periods of time being considered.

24.     The manner in which the discretion to extend time is to be exercised and the factors to be considered are virtually identical irrespective of the manner in which the reviewable decision is to be characterised. I am satisfied, for reasons which follow, that even if the reviewable decision were characterised as an affirmation of the primary determination under review, although it would involve consideration of an application which is more than three years outside the time permitted to lodge proceedings, it is an application which is deserving of an extension of time.

25.     If the considerations in Hunter Valley were adopted as the “template” for consideration of an extension of time I am of the view that explanations for the delay have been provided by the applicant.  The Full Court decision of A’Hearn, modifies the decision of Hunter Valley to the extent that an “acceptable” explanation is not “an essential pre-condition” (refer A’Hearn at page 369). Nonetheless, “it is to be expected that such an explanation will normally be given . . . “.  In the present circumstances, the explanations given by the applicant were in large part a reliance by him on his professional advisors to pursue his legal rights by challenging decisions which were adverse to him.  The applicant is not a lawyer and was not aware of the limitation on time for challenging decisions.  His lawyers would have been aware of such a limitation.  It was clear from the evidence, and I find as a fact, that the applicant himself was not aware until July 2001 that decisions had been made which were adverse to him.  This was because his former solicitors did not notify him of the reviewable decision nor, it would seem, did they seek to obtain any instructions from him.  Indeed many months after the reviewable decision was made the applicant learnt that his former solicitors had in fact closed his file.  There is no principle of law that “the sins on the solicitors must be visited upon their clients” (refer A’Hearn; Jess v Scott (1986) 70 ALR 185; Re Pulitano and Telstra Corporation Limited (AAT 8874, 27 July 1993)).

26.     The obvious inactivity also by the applicant’s subsequent solicitors until April 2004 is also deserving of criticism however when Ms Davidson took over conduct of the applicant’s file these proceedings were instituted without delay.

27.     The explanation for delay in applications to extend time is not to be considered in isolation.  It is to be considered also in the context of whether it would be “fair and equitable in the circumstances” to extend time (refer Marrick).  Having regard to the applicant’s reliance upon his professional advisors it would not be “fair and equitable” to punish him by denying him the opportunity to pursue these proceedings.  It follows therefore that an extension of time to lodge the application should be granted.

28.     Consideration also of fairness and equity dictates an enquiry into the circumstances surrounding the intention on the part of the applicant to bring proceedings to recover compensation.  Whilst it is acknowledged above that there was a default on the part of the solicitors to institute appeal proceedings within time, it is abundantly clear from a perusal of the correspondence of both firms of solicitors who were instructed by the applicant that the respondent was made aware over the years that the applicant did intend to pursue his compensation rights.  This is evident by the documents forwarded to the respondent comprising medical reports and accounts of treatment from doctors, correspondence from Centrelink and CRS, the identity of past employers and documentation from other persons who had an association with the applicant when he played sport.  Clearly this information was provided with the intention of ultimately prosecuting compensation rights.  The respondent surely could be in no doubt that this was the purpose of forwarding this documentation.  It could not reasonably hold the view that the applicant did not intend to challenge the reviewable decision yet at the same time provide information consistent with an intention to claim compensation.  It follows therefore that the respondent could not reasonably assume that the applicant had rested on his rights.

29.     The respondent alleged in the present circumstance that it would suffer prejudice if these proceedings were allowed to be lodged.  It is no doubt open to assumption that with the passage of time, witnesses might not be located or if they are their memories would be poor.  However there is no evidence of this.  There is an abundance of documentation which would permit enquiry and scrutiny by the respondent and there is no evidence that any potential witness is unable to be called to give evidence.  In the absence of evidence of prejudice I am not prepared to find as a fact that the respondent has indeed suffered it or is likely to suffer it (refer Williams v FS Evans and Sons (1998) 52 SASR 237.

30.     With respect to the application itself I am satisfied that it is not without merit.  There was cross-examination of the applicant with respect to alleged prior injuries and injuries subsequently affecting the right ankle which is the subject of these proceedings.  The applicant denied prior or subsequent injuries.  An extension of time hearing is not the forum to make findings of fact upon the respondent’s liability but rather it is the occasion for the applicant to demonstrate that his claim has merit.  I am satisfied that the claim does have merit.  He should be permitted to advance his application by calling witnesses.  It necessarily follows that the respondent will be given the opportunity to test that evidence and call witnesses of its own.

31.     In all of the circumstances and having regard to the beneficial nature of compensation legislation I am satisfied that it would be “fair and equitable” to permit the applicant to bring these proceedings.  It follows therefore that time should be extended to permit these proceedings to be lodged.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member

Signed:         Holly Weston
  Associate

Date of Hearing  9 July 2004
Date of Decision  20 July 2004
Counsel for the Applicant         Mr I Fehring
Solicitor for the Applicant          Nevin Lenne Gross
Counsel for the Respondent     Mr J Ferwerda
Solicitor for the Respondent     Australian Government Solicitor